What is “cruel and unusual”?

Emory Bouffard
Prior Known Information
● There’s an amendment in the US Constitution that says cruel and unusual punishment
isn’t allowed
● Multiple examples where something most certainly IS cruel and/or unusual, but it’s
still legal.
● Furman v. Georgia (1972)
● Gregg v. Georgia (1976)
● Conversion therapy is still legal (Boy Erased)
● Multiple questions on what counts as “cruel and unusual”

Citations: 1-3
8th Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.

● Guantanamo Bay Naval Base

● Incarcerated women who are pregnant, in labor, or post labor
● Gay Conversion therapy for minors

Definition of cruel and unusual:

“Penalty that is either barbarbaric or far too severe for the crime committed”

All of these were ruled as cruel and/or unusual and deemed as unconstitutional. What lets them
remain legal?

Citations: 4, 7, 18
Torture in Guantanamo Bay Naval Base
● Why is it legal?

2005: government can “use all

necessary and appropriate force against
those nations, organizations, or persons
[who were involved in planning any
terrorist attacks or planned any
attacks]”-In re Guantanamo Bay
Detainee Cases

Citations: 1-5
Habeas Corpus
● “You have a body”
● The Suspension Clause of the United States Constitution states: the privilege of the
writ of habeas corpus shall not be suspended, unless when in cases of rebellion or
invasion the public safety may require it
● → Guantanamo Bay detainees don’t get habeas corpus, often held without their day
in court

Citations: 1-5
Mistreatment of Incarcerated Women
● Pregnant, labor, post labor→ not important. Chained
and restrained during it all
● Utah, Nebraska, Kansas, Indiana, Georgia, and South
Carolina all have NO policy against it
● “Violation of domestic constitutional law... [and]
prisoners’ 8th Amendment right to be free from cruel
and unusual punishment”-ACLU
● Nelson v. Norris aka Nelson v. Correctional Medical
Services
● Estelle v. Gamble
Citations: 7-16
 “Unnecessary Suffering”
● Nelson v. Norris...One woman, not everyone
● “Either interference with care or infliction of “unnecessary suffering” established deliberate
indifference in medical care cases in violation of the Eighth Amendment”-Estelle v. Gamble

But…

If prison staff has “reasonable grounds to believe the offender presents an immediate, serious
threat of hurting herself, staff or others” or “immediate, credible risk of escape” and prison guard
must “recognize the risk [of shackling or restraint]” it is constitutional-Women Prisoners v.
District of Columbia, 1994
Citations: 9-16
 Gay Conversion Therapy
“Conversion therapy is harmful and
ineffective”
-American Medical Association, American
Psychological Association, American
Academy of Pediatrics, American Academy
of Child and Adolescent Psychiatry,
American Association for Marriage and
Family Therapy, American School Health
Association, American College of Physician,
American Psychoanalytic Association,
National Association of Social Workers,
American School Counselor Association,
American School Health Association, and
more. Citations: 17-24
● Aka Sexual Orientation Change Efforts
(SOCE), illegal in 15 states + D.C.
● “The potential risks of reparative therapy
are great, including depression, anxiety
and self destructive behavior, since
therapist alignment with societal
prejudices against homosexuality may
reinforce self-hatred already experienced
by the patient”-California bill SB-1172
● QTalks
● Boy Erased
● Family Acceptance Project
Loophole for SB-1172
● Pickup v. Brown 2013, SB-1172 clarification
“SB 1172 does just one thing: it requires licensed mental
health providers in California who wish to engage in
"practices... that seek to change a [minor's] sexual
orientation" either to wait until the minor turns 18 or be
subject to professional discipline. Thus, SB 1172 regulates
the provision of mental treatment, but leaves mental
health providers free to discuss or recommend treatment
and to express their views on any topic.”
● To the left, Garrard Conley, author of Boy Erased

● Aversive Treatment: “induced nausea, vomiting, or paralysis; providing electric shocks; or having an
individual snap an elastic band around the wrist when aroused by same-sex erotic images or thoughts”
● Non-aversive Treatment: Sexual orientation change efforts, counseling, “gay boot camp,” shame, ex.
“Better to kill yourself than to be gay”-John Smid, Boy Erased
● citations:17-24
Conclusions
Yes it was a long process. Next time, not doing 3 different parts of a single subject.

Research was very thorough, used A LOT of sources. Just wait until you see my sources
cited page.
Citations
https://www.constituteproject.org/constitution/United_States_of_America_1992
2In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443 - Dist. Court, Dist. of Columbia
2005
3Virtual Mentor. 2013;15(9):779-785. doi: 10.1001/virtualmentor.2013.15.9.pfor2-1309
4Steyn, J. (2004). Guantanamo Bay: The Legal Black Hole1. International and
Comparative Law Quarterly, 53(1), 1-15. doi:10.1093/iclq/53.1.1
5 Haltiwanger, John. “Torture Used by U.S. Military at Guantanamo Bay despite Being
Banned, UN Says.” Newsweek, 13 Dec. 2017, www.newsweek.com/torture-used-us-
military-guantanamo-bay-despite-being-banned-un-says-747373. News on the
continuation of torture being used at Guantanamo Bay Naval Base with no interference
from the United States government
6 Coffman-Grey, Neil. “Conversion Therapy Must Be Banned.” The Santa Barbara
Independent - News, 17 May 2018,
www.independent.com/news/2018/may/17/conversion-therapy-must-be-banned/. Article
referencing gay conversion therapy (specifically for minors) as a "cruel and unusual
punishment."
7 BraithWaite, Ronald L, et al. “Health Disparities and Incarcerated Women: A
Population Ignored.” Cross-Sectional and Longitudinal Effects of Racism on Mental
Health Among Residents of Black Neighborhoods in New York City | AJPH | Vol. 105
Issue 4, American Journal of Public Health (AJPH) Publications, 11 Oct. 2001,
ajph.aphapublications.org/doi/10.2105/AJPH.2005.065375. Detailed reflection on the
mistreatment of female prisoners in America's federal prison system
8“Federal Bureau of Prisons.” BOP Statistics: Inmate Offenses, 24 Nov. 2018,
www.bop.gov/about/statistics/statistics_staff_gender.jsp. 72.7 % of prison staff are male,
while only 27.3% are female.
9 Beck AJ, Berzofsky M, Caspar R, Krebs C. Sexual victimization in prisons and jails reported by
inmates, 2011-12. Washington, DC: Bureau of Justice Statistics, 2013.
10 American Civil Liberties Union. ACLU briefing paper: the shackling of pregnant women &
girls in U.S prisons, jails & youth detention centers.
11Min, Lilian. “These States Still Allow Female Inmates to Be Shackled During Childbirth.” The
Cut, The Cut, 28 Mar. 2018, www.thecut.com/2018/03/these-states-still-allow-shackling-inmates-
during-childbirth.html. 6 states still have no policies banning the practice of shackling women
while pregnant, in labor, or post-labor
12 Id.; CAL. PENAL CODE § 5007.7
13GeraldineDoetzer, Hard Labor: The Legal Implications of Shackling Female Inmates During
Pregnancy and Childbirth, 14 Wm. & Mary J. Women & L. 363 (2008)
14 Nelson v. Correctional Medical Services, 583 F. 3d 522 - Court of Appeals, 8th Circuit 2009
15 Kasdan, Diana. “Long Past Due: Constitution Protects Women in Prison from Unsafe Shackling
During Childbirth.” Rewire.News, Rewire.News, 5 Oct. 2009,
rewire.news/article/2009/10/06/long-past-due-constitution-protects-women-prison-unsafe-
shackling-during-childbirth/. Article concerning the Nelson v. Norris case that supposedly ended
all practices of shackling of female prisoners who are pregnant, in labor, or post labor.
16Women Prisoners v. District of Columbia, 877 F. Supp. 634 - Dist. Court, Dist. of Columbia
1994
17 “Equality Utah - QTalks.” Equality Utah - Home, www.equalityutah.org/equality-events/q-
talks2017. Event featuring speakers who lived through gay conversion therapy
Citations continued....
18Human Rights Campaign. “The Lies and Dangers of ‘Conversion Therapy.’” Human Rights Campaign, www.hrc.org/resources/the-lies-and-dangers-of-reparative-therapy.
Statistics reflecting consequences of gay conversion therapy

19“Law Bans Conversion Therapy for Minors .” Movement Advancement Project | Foster and Adoption Laws, www.lgbtmap.org/equality-maps/conversion_therapy.

20 “Text.” Bill Text - SB-1172 Sexual Orientation Change Efforts., leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201120120SB1172.

21 Pickup v. Brown, 740 F. 3d 1208 - Court of Appeals, 9th Circuit 2013

22Conley, Garrard. Boy Erased: a Memoir of Identity, Faith, and Family. William Collins, 2018. Firsthand account of the effects of gay conversion therapy or Sexual Orientation
Change Effort (SOCE).

23“The Complete Guide to MLA & Citations.” Citation Machine: Modern Language Association 8th Edition Format Citation Generator for Journal Article,
www.citationmachine.net/mla/cite-a-website. This is added solely as a joke. Citing sources was a huge step in the process, mostly so I was able to obtain sufficient information and
keep track of all of the sources I used in case I had to refer to them later on.

24Busby, John C. “Cruel and Unusual Punishment.” LII / Legal Information Institute, Legal Information Institute, 17 Oct. 2018,
www.law.cornell.edu/wex/cruel_and_unusual_punishment. Definition of cruel and unusual as defined in different cases